ARTICLES

64(4): 0973 - 0998 (August 2009)This Article seeks to present, through an analysis of precedent disclosures, caselaw, rules, regulations, and practical ramifications, the considerations counsel must take into account in evaluating disclosure decisions in the context of an investigation. These considerations can help counsel avoid having a disclosure decision worsen the already difficult circumstances posed by the investigation itself.

64(4): 0999 - 1038 (August 2009)This Article traces the historical relationship between contract law and tort law in the context of commercial transactions, outlines the sources, risks, and consequences of extra-contractual liability for transacting parties today, and surveys the approaches that various jurisdictions have adopted regarding the ability of contracting parties to limit their exposure to liability for common law fraud and misrepresentation. In light of the foregoing, the authors propose a series of defensive strategies that business lawyers can employ to try to limit their client's exposure to tort liability arising from contractual obligations.

64(4): 1039 - 1086 (August 2009)This Article focuses on the potential right of a business successor to assert various elements of a predecessor's attorney-client relationship and the implications to practitioners of a successor's ability to do so. An attorney-client relationship that the courts permit to be asserted by a business successor is referred to in the Article as a "transpositional" relationship.

64(4): 1087 - 1104 (August 2009)The Delaware Supreme Court ruled in 2007 that corporate directors owe no direct fiduciary duty to creditors in insolvency, but the bar seems to have met the case with a collective shrug. The general view being that the preservation of a creditor's right to purse derivatively on behalf of a distressed corporation a claim for breach of fiduciary duty leaves intact the "fiduciary duty to the corporate enterprise" theory. This Article argues that this view is wrong, and that "duty to enterprise" theory is incoherent and ignores the reality of business valuation. The necessary consequence of Gheewalla is that were a business strategy may generate a return for equity holders, the board must favor that strategy and reject alternatives, even if in the board's business judgment the strategy is unlikely to succeed, and alternatives, on a risk-adjusted basis, would maximize the enterprise value.

64(4): 1105 - 1128 (August 2009)This Article reports the results of an empirical study of whether and how in-house corporate counsel advise corporate officers about fiduciary duties. The study's findings show several interesting patterns in advice-giving practices. This Article also offers recommendations for improved practices in advising officers about their duties.

REPORTS

64(4): 1129 - 1155 (August 2009)The objectives of the amendments are to weave the Uniform Electronic Transmissions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-Sign) concepts into the Model Act. Primarily confining changes to sections 1.40 and 1.41 and thereby avoiding unnecessary revisions throughout the rest of the Model Act. The changes are contained within.

64(4): 1281 - 1293 (August 2009)This survey focuses on the most important developments in 2008 dealing with the U.C.C. This section focuses on the related Contracts for the International Sale of Goods.